.r1 OF C'—C- 

 In EXCLUSION Proceedings 

A-12251617 

Decided by Board March 8, and August 2, 1961 

Imolmisaibility—Section 212 (a) (14) (D)—"Ineligible employer." 

Secretary of Labor's certification under section 212 ( a ) (14) (B) of 1952 Act 

that employment of aliens by persons on Secretary's list of ineligible employers will adversely affect wages and working conditions of similarly 

employed workers in tne United States Goes not bar Remissibility of Mexican national who subsequent to receipt of nonquota immigrant visa obtains 

new employer in place of employer on ineligible list to whom he was originally destined. 

EXCLUDABLE: Act of 1952—Section 212 (a ) (14 ) (B ) [8 TJ.S.C. 1182 (a ) (14) ( 33) ]— 

Seeks to enter the United States for employment which would 

adversely affect wages and working conditions of workers in 

the United States similarly employed. 

BEFORE THE BOARD 

(March 8, 1961) 

DISCUSSION: Appellant is 31 years old, married, male, a native 

and citizen of Mexico. He arrived at San Ysidro, California, on 

October 21, 1960, and sought admission for permanent residence. He 

presented a Mexican passport, valid to June 14, 1062, and a nonquota, immigrant visa issued by the American Consul at Mexico City 

on October 10, 1960, valid to February 9, 1961. These documents 

have expired while these proceedings were pending, but it has been 

the administrative practice to consider that their validity continues 

until disposition of the appeal. The special inquiry officer ordered 

appellant excluded and deported from the United States and certified the case to this Board for review. 

The special inquiry officer excluded appellant for the reason 

that his sponsor and prospective employer is F—H----, General 

Manager of Heringers Enterprises, Oroville, California. I/cringers 

Enterprises appears on a list of "Employers Ineligible to ,Contract 

Mexican Nationals," dated September 1, 1960, transmitted to the 

Attorney General and the Visa Division of the Department of State 

from the Director of the Bureau of Employment Security, Depart387 
ment of Labor. The Secretary of Labor on March 11, 1958, certified 

and determined "pursuant to the provisions of section 212(a) (141')3) 

of the Immigration and Nationality Act i that the employment of 

any aliens by persons on the aforesaid list of ineligible employers 

... will adversely affect the wages and working conditions of the 

workers in the United St itte.s similarly employed," The employers 

on the list are declared to be ineligible to contract Mexican nationals 

because of violations of the Migrant Labor Agreement of 1951, as 

amended, or the Standard Work Contract, as amended. 

Appellant testified that he, is coming to the United States to perform agricultural work for Heringers Enterprises ;and that his work 

would be primarily pruning peach trees. He was employed briefly by 

Mr. H— when he was in the United States as a "bracero." His affidavit of support and letter of employment are signed by Mr. II—. 

The question is whether the appellant is excludable under section 

410(a) (14) (B) 8,3 a person seeking to enter the United States, because his prospective employer is a person who has been declared ineligible to contract on a temporary basis Mexican agricultural workers. The special inquiry officer stated that it appears "that employeris seeking to accomplish indirectly what he has been prevented from 

doing directly, namely, to obtain an agricultural worker from Mexico , 

 to perform the same work he previously did' when in the United 

States as a tracerO.' By arranging for the immigration for permanent residence of such a worker the employer is enabled to overcome the requirements of section 214 of the Immigration and Nationality Act pertaining to the admission of nonimmigrants and 

the specific provisions of 8 CFR 214.2(k) relating to Mexican agricultural workers." 

We wql not quote 8 CFR 2142(k), cited by the special inquiry 

officer, because of its length, but it relates exclusively to "nonimmi, 

grant classes." It describes the conditions for admission of a bona 

full nonimmigrant, Mexican agricultural worker, including the fact 

that he must agree to abide by the conditions of employment and to 

depart upon the expiration of the priod . fo7 1- r.3 was admitted. 

Regulations concerned with nonirmnio,rant cos• t labor,,rs have no 

Section 212(a) (14) (B) provides: "Sec. 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive 

visas and shall'be excluded from admission into the United States: * * (14) 

Aliens seeking to enter the united .States for toe purpose of performing stoned 

or unskilled labor, if the Secretary of Labor has determined and certified to 

the Secretary of State and to the Attorney General that * (B) the employment of such aliens will adversely affect the wages and working conditinTIR of the workers in the United States similarly employed. The ez.clusitm 

of aliens under this paragraph shall apply only to the following classes:, (i) 

those aliens described in the nonpreference category of section 203(a) (4), 

(ii) these aliens described in section 101(a) (27) (C) * *" 

388 
application to an immigrant who presents himself at the border with 

the documents necessary for lawful admission for permanent residence. 

The alien requests that he be given an opportunity to obtain another letter of employment and another affidavit of support. He 

states that it would be expensive and difficult for him to start over 

again to secure the necessary documents and that he is not to blame 

for the difficulty between H— and this Government. 

We have sought vainly to find in the legislative history of the Act 

any legislative intent to use this provision to enforce against specific 

employer agreements relating to wages, hours and working agreements. This provision replaces the "contract labor" clause of section 3 of the Immigration Act of 1917. The Senate Committee Report No. 1137. 82d Cong., 2d Sess., which accompanied the 1952 Act, 

states, page 11, "Saction 212(a) (14) provides for the exclusion of 

aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor if the Secretary of Labor has determined that there are sufficient available workers in the locality of the 

aliens' destination who are able, willing, and qualified to perform 

such skilled or unskilled labor and that the employment of such aliens 

will adversely affect the wages and working conditions of workers in 

the United States similarly employed. This provision is applicable to 

all aliens other than those whose services have been determined to be 

needed in the United States under certain other provisions of the bill 

or who are entitled to preferential treatment because of their relationship to United States citizens or aliens who have been lawfully 

admitted for permanent residence. It is the opinion of the committee 

that this provision will adequately provide for the protection of 

American labor against an influx of aliens entering the United States 

for the purpose of performing skilled or unskilled labor where the 

economy of individual localities i8 not capable of absorbing them at 

the time they desire to enter this country." (Emphasis supplied.) 

The House Committee Report No. 1365, February 14, 1952, contains 

a similar statement, page 51. 2There is nothing else in the legislative history of the Act relating to the function of this provision. 

The only decision concerning section 212(a) (14) is Amalgamated 

Neat Cutters and Butcher Workmen of North America, AFL–C10 

v. Rogers and Swing, 186 F. Supp. 114 (D.C. D.C., 1960), wherein 

Judge Youngdahl distinguished between legally resident aliens and 

2 - An earlier report of the Senate Committee on the Judiniary, Report No. 

1515, 81st Cong., 2d Sess., April 20, 1950, discusses in greater detail the reasons for abandoning the contract labor clause or the 1917 Act, pp. 358-363, 

and stales that ''such aliens will not be admitted if unemployed persons in 

the United States capable of performing such services or labor are available," 

and indicates (p. 430) the desirability of importing "skilled agriculturists." 

389 
commuters, applying the sanction against the latter as strikebreakers, 

at the petition of the union. The decision is of no assistance in the 

instant case. 

The argument that H— is seeking to accomplish indirectly what 

he has been prevented from doing directly does not justify creating 

an extra -legal satiation against the employer, or an unnoCessary hardship for the immigrant. An alien worker in the United States legally 

is in a better position to protect himself from exploitation than a 

migrant worker in the United States illegally, or than a "bracero" 

who is cc atracted to the employer. 3 

The Board cannot make a final conclusion'on this record that the 

application of section 212(a) (14) (B) of the Immigration and Nationality Act and of 8 CFR 214.2(k) to immigrants, as was done here, 

is beyond the scope of the Act. Neither the Immigration and Naturalization Service nor the Department of Labor has made sufficient 

representations regarding the practice, However, it is our opinion 

that the remedy for the abuse of the migrant worker does not lie 

in creating extreme hardship for the individual alien who seeks 

legal entry, and arrives at our port properly documented, except that 

he chose the wrong sponsor. He is under no contract, and his nonquota visa is unconditional. 

It is the conclusion of the Board that the record should be reopened in order that the appellant may have an opportunity to 

attempt to secure a different employer and a new affidavit of support. 

ORDER: It is ordered that the record be reopened for the purpose 

set forth above. 

BEFORE THE BOARD 

(August 2, 1961) 

DISCUSSION: On the basis of the Board's decision of March 8, 

1961, and the fact that the applicant has secured a different employer 

and a new affidavit of support, the special inquiry officer, reversing 

an earlier decision, ordered applicant admitted to the United States 

for permanent residence and certified the case to this Board for 

review. The District Director at Los Angeles recommends that the 

decision of the special inquiry officer he set aside and that the 

applicant be excluded from the United States as an immigrant not 

in possession of a valid immigrant visa. The District Director's 

recommendation is based on a documentary ground only. 

On March 8, 1961, the Board considered this record, the applicable 

statutes and regulations. Applicant's affidavit of support and letter 

3 Portions of the testimony before the President's Commission on Immigration and Naturalization, September-October 1952, 82d Cong., 2d Sess., Committee Print, pp. 597, 1051, 1064, show clearly a desire to reduce the number of 

contracted migrants and increase the number of permanent, resident, farm 

workers. 

390 
of employment at that time were signed by one who had been declared by the Secretary of Labor to be ineligible to contract Mexican 

agricultural workers. Therefore, the special inquiry officer had 

found the applicant excludable under section 212(a) (14) (B) as a 

person whose employment "would adversely affect the wages and 

working conditions of the workers in the United States similarly 

employed," pursuant to the determination and certification of the 

Secretary of Labor under the provisions of section 212(a) (14) (B) 

of the Immigration and Nationality Act. We ordered the record 

reopened in order that the alien might secure a different employer 

and a new affidavit of support. 

The special inquiry officer now finds that the applicant is no 

longer destined to an ineligible employer, but has secured an affidavit of support and employment by a rancher in Marysville, 

California, whose name does not appear on any list of ineligible 

employers. He found that the applicant presented a valid nonquota 

immigrant visa and a valid Mexican passport, and is not otherwise 

excludable or inadmissible to the United States under section 212 

(a) (14) (B) of the Immigration and Nationality Act. 

The District Director at Los Angeles urges that the special inquiry 

officer erred on the ground that the applicant was ineligible to receive a visa at the time it was issued to him on October 10, 1960. 

The District Director states that the authority to revalidate or reissue a visa is vested entirely in the Department of State, and that 

the special inquiry officer is not authorized to revalidate a visa by 

acceptance of documents in support of the application for the visa. 

He urges that the documents and application for revalidation must 

be made to the visa issuing authorities of the Department of State, 

and that this is the applicant's only relief. It is the opinion of the 

District Director that the visa was issued in error and was, and is, 

invalid. 

It is the Board's opinion that the alien fell within an "ineligible 

class" solely because his prospective employer was, unknown to the 

alien, an "ineligible employer." The certification under section 212 

(a) (14) (B) does not appear to hold the alien ineligible to receive a 

visa except for his employment and this condition depends, in turn, 

upon the ineligibility of the employer. When the alien found an 

eligible employer, the di3ability wan removed. Tho list is "of employers declared ineligible to contract Mexican nationals," and the 

ineligibility related to the prior prospective employer, rather than to 

the applicant. As we pointed nut in our decision of March 8, 1961, 

there is nothing in the statute or in the legislative history of the 

statute that indicates that section 212(a) (14) (B) should be used in 

the manner in which it has been used in this case, and certainly its 

use in this fashion should not be extended to create unnecessary diffi391 
culties. It is our opinion that by complying with the order of the 

Board of March 8, 1961, the alien has cured the obstacle to his 

admission created by the ineligibility of his former prospective employer. The order of the special inquiry officer of May 23, 1961 will 

be approved. 

ORDER: It is ordered that the order of the special inquiry officer 

be and is hereby approved. 

392